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Lingar v. Live-In Companions

April 17, 1997

COMMANDER AILON B. LINGAR AND MARIA LINGAR, HIS WIFE, PLAINTIFFS-APPELLANTS,V. LIVE-IN COMPANIONS, INC., BONNIE PARSONS OECHSLE AND JOSEPH S. OECHSLE, SR., DEFENDANTS-RESPONDENTS.


On appeal from Superior Court of New Jersey, Law Division, Camden County.

Approved for Publication April 17, 1997.

Before Judges Baime, P.g. Levy, and Braithwaite. The opinion of the court was delivered by Baime, J.A.D.

The opinion of the court was delivered by: Baime

The opinion of the court was delivered by

BAIME, J.A.D.

Maria Lingar retained Live-In Companions, Inc. to care for her disabled husband, Naval Commander Ailon Lingar, while she went on a trip. Live-In Companions assigned Kenneth Mack to attend to Ailon in Maria's absence. While Maria was away, Mack abandoned Ailon and stole several items from her home. Plaintiffs brought this action against Live-In Companions, its owner and director, Bonnie Oechsle, and her husband, Joseph Oechsle, seeking compensatory and punitive damages. The trial court granted defendants' motion for partial summary judgment and dismissed plaintiffs' claims for negligent and intentional infliction of emotional distress, conversion and invasion of privacy. At the close of plaintiffs' case, the trial court dismissed all of Ailon's claims and all of the claims against Joseph Oechsle. The trial court also dismissed Maria's claim for breach of contract and her demand for punitive damages. At the close of all the evidence, the trial court dismissed Maria's remaining claims for negligent hiring and consumer fraud. Judgment was entered accordingly. Plaintiffs appeal. We affirm in part and reverse in part.

I.

Plaintiffs were married in 1947. Early in the marriage, Ailon suffered a ruptured cerebral aneurysm, leaving him totally disabled and in need of "around-the-clock" care.

In September 1993, Maria retained Live-In Companions to care for Ailon during her absence while on a trip. In her Discussions with Bonnie Oechsle, Maria emphasized the nature and extent of Ailon's needs. Maria stressed that she was looking for someone who was "very reliable" to feed, bathe and attend to the personal needs of her husband and to administer the appropriate medication for his heart and for preventing seizures. Bonnie responded that Maria could "depend" on Live-In Companions because of the high quality of its employees. Maria also had received a brochure from Live-In Companions which represented that its "reliable employees" would "assist with washing, dressing and helping individuals as needed" and would "provide friendship [and] someone to talk to and be there" when the primary care-giver could not. The brochure also contained the representation that "all employees [were] supervised and a close relationship [was] maintained between [the] employees, clients, client's families, and [Live-In Companion's] administration."

On the day of Maria's trip, Live-In Companions assigned Kenneth Mack to care for Ailon. Bonnie had hired Mack in May 1993, based upon the recommendation of one of Live-In Companion's trusted employees. Although Mack had represented on his application for employment that he had not been convicted of a "felony" in the last seven years, he had a formidable record of criminal and disorderly persons convictions for offenses ranging from possession and distribution of cocaine to shoplifting, trespassing, and receiving stolen property. In response to questions propounded in the application, Mack had indicated that he did not have a driver's license. It was Bonnie's practice to "pre-screen" applicants by conversing with them on the telephone and to conduct pre-hiring interviews. No further investigation was generally undertaken. Bonnie stressed that she would not have hired Mack had she known of his checkered history.

While Maria was away, Mack abandoned Ailon and stole various items, including Maria's automobile. Fortunately, family members quickly discovered the problem, but both Maria and Ailon claimed that they were emotionally traumatized by the incident.

On appeal, plaintiffs advance a plethora of arguments attacking the Law Division's pretrial and trial decisions. For the purpose of clarity, we do not treat these claims chronologically. Instead, we first address plaintiffs' argument that the trial court erred by dismissing their claims for consumer fraud and negligent hiring. We find merit in these contentions and reverse and remand for a new trial on these counts. We reject the remainder of plaintiffs' arguments.

II.

Initially, we consider plaintiffs' argument that the trial court erroneously dismissed their claim of consumer fraud. The trial court granted an involuntary dismissal because it viewed Bonnie's statements and the representations made in the Live-In Companion brochure as mere ...


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